Online publishers have been given a wake-up call following a recent judgment on contempt of court. In Attorney General v Associated Newspapers Ltd & News Group Newspapers Ltd. ([2011] EWHC 418 (Admin)) The Sun and Daily Mail newspapers had published online a photograph of a defendant in a murder trial showing him posing with a gun.

The image remained on the newspapers’ websites for between 5 and 19 hours on the first day of the trial, before it was hastily taken down at the request of the police.

Remarkably, this is the first case in which the English courts have had to consider whether publication online was a statutory contempt of court i.e. whether the publication on the internet created a “substantial risk” of prejudicing the defendant’s trial. The publication did not in fact prejudice the trial – immediately after publication the judge asked the jury whether they had been online and they said they had not, so he refused to discharge them from the case. But the question remained, in deciding if the papers were in contempt, whether there was nevertheless a substantial risk of prejudice, despite the fact that the papers plainly did not intend to prejudice the trial’s outcome (publication of the photograph occurred because of errors in the papers’ pre-publication checking systems). The papers contended that as the image was only online for a few hours, was not especially prominent and because the trial judge had already specifically directed the jury “not to consult the internet” and to ignore any publicity about the case, any residual risk was insubstantial.

The Administrative Court examined how accessible the photograph would have been (e.g. how prominent was the link on the papers’ websites) and how often it was in fact accessed, especially in the geographical area in which the trial was occurring (to ascertain whether a juror might have seen it).

The papers’ liability for contempt of court was under the “strict liability” rule in s.2 of the Contempt of Court Act 1981, which makes it an offence to create a substantial risk of prejudice in court proceedings, irrespective of any lack of intent to do wrong. “Substantial” risk means “more than remote or minimal”. The test is not how many people in fact accessed the photograph but how many relevant persons might have. The papers are the two most widely-read in the UK. Critical to the Court’s decision was its analysis of whether the risk of prejudice was minimal because any juror who saw the article would have to disobey the judge’s directions regarding the internet. Making a distinction which some may regard as very fine indeed, the Court held that because the judge had not specifically warned jurors not the read the news online generally but rather had told them not to “consult” the internet about the case, that left open the possibility that they might be browsing generally online and inadvertently come across the offending material. So, the Court concluded, a juror might have seen the photograph without deliberately disregarding the judge’s orders. It went on to explain that it would not have found a contempt if the judge had directed the jury “not to go online at all”; since it must be assumed that jurors will heed such a specific prohibition.

Whilst it is understandable that the court should place so much trust in the jury faithfully obeying trial judge’s directions, it is somewhat unrealistic to suppose that the jury will exactly tailor their browsing habits to the precise words that the judge gives them (if indeed they have memorised them). It is interesting to consider, for example, what might have happened if the trial judge upon being informed about the photograph, instead of asking the jury “Have any of you been going onto the internet?”, had asked them to recite what his precise directions concerning the internet were. And is it really tenable to suggest that a judge can direct the jury not to read (online or in print) the news at all during a lengthy trial?

One aspect, which the Attorney General himself has specifically emphasised, but which the Court did not specifically consider, is the argument that because we do not have extensive jury vetting in this country, we need to enforce contempt of court rigorously in order to ensure the jury’s impartiality. In the USA, by contrast, there is virtually no restriction on press reporting in relation to criminal trials but any prejudice is allegedly eliminated by detailed jury selection procedures designed to remove, in particular, anyone who has seen or read any extraneous material relating to the trial.

The Court gave short shrift to the papers’ argument that the gun-posing photograph was not prejudicial in its content – after all the defendant’s defence was self-defence and lack of murderous intent.

The papers also argued that even if the jury had seen the photograph they would have obeyed the judge’s directions to try the case on the evidence alone. This is a point of considerable wider importance. There are many cases in which the appeal courts have emphasised the fact that the jury can be trusted to discharge their oath obediently. Indeed such is the level of faith in the jury’s integrity that it is extremely difficult to halt or appeal a criminal case based on prejudicial publicity alone; since the jury will usually be safely trusted to disregard entirely any such extraneous material. The prejudicial publicity which preceded Abu Hamza’s and Michael Stone’s cases, for example, was intense and hostile and yet did not provide a successful ground of appeal. But that raises the linked question of whether the strength of any potential appeal grounds arising from the prejudicial material is directly relevant to proving strict liability contempt. Plainly contempt is possible even though the trial is not aborted as a result of the prejudicial publication – it is the risk of prejudice which matters, not the actual prejudice. But is it sufficient that the prejudicial publication created a seriously arguable ground of appeal? The Court held that it was. Although that creates a workable test in principle, in practice it is very difficult to predict how Court of Appeal (Criminal Division) would have approached the material and its effect on the trial. It does raise the spectre of a newspaper being fined for contempt in relation to potentially prejudicing a trial and any defendant who was convicted at that trial then contending that he must have seriously arguable ground of appeal based on the contempt ruling. The criminal appeal court would then have to consider the actual prejudice to the trial and not the potential prejudice.

The Court concluded that “the criminal courts have been troubled by the dangers to the integrity and fairness of a criminal trial, where juries can obtain such easy access to the internet and to other forms of instant communication. Once information is published on the internet, it is difficult if not impossible completely to remove it.” It emphasised the “viral nature” of internet information. The Court rejected the contention that juries cannot be trusted to obey the prohibition on internet access but were concerned to address it. Giving a broad interpretation to strict liability contempt “demonstrates the need to recognise that instant news requires instant and effective protection for the integrity of a criminal trial”.

Lord Ken Macdonald QC, the former DPP, recently suggested that policing the accuracy of information on the internet is “an unmanageable task”. He thought that it should not invalidate a trial if jurors are found to have conducted online research while a case is in progress. The Administrative Court has taken a middle road – encouraging accurate reporting by adopting a tougher stance on contempt, whilst also trusting juries to obey the judge’s directions. Will this new approach actually improve reporting standards at the tabloids? I wonder.

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